In Canada: Litigating Literacy.

THE RIGHT to decide what to count is cherished prerogative of power. Corporations and the state both invest significant resources in order to control the scope and interpretation of data. The leave-no-child- untested regime has the same DNA as the corporate mantra If it matters, measure it. But who decides what matters? Selectively measuring certain outcomes, while ignoring (or denying) others, is particularly useful to the manufacturers of toxic chemicals, fast foods, and standardized testing. Restricting measurement to internalities, such as profits-per-burger or pass rates, sends the externalities of the associated health and social costs downstream, to be transformed into personal misery or picked up public expense. No harm left unlitigated is the spawn of no (self-serving) outcome left unmeasured. While Canadians tend to consider the American system to be overly litigious, we are catching up fast. Our own domestic set of plaintiffs is suing the agents of obesity and pollution, but actions pertaining to education seem to be spiking as well. A few of these cases are trivial. This morning's local newspaper reports that judge has ruled that for one teacher to brand colleague as a [former Ontario Premier] Mike Harris-supporter may have been vile, but it wasn't defamatory. But other cases are more substantial, including one that presents the tantalizing possibility that real redress of wrongs in education might be obtained through the courts. An action recently filed against the Ontario minister of education may succeed where other forms of advocacy and resistance have failed. Certainly, it will receive more attention than most protests. Nothing focuses the attention of government like being sued. Nothing captures more media interest than the prospect of seeing minister of the Crown in the witness box. Meet the plaintiffs. Matt is 17 and has Down's syndrome. He has been fully integrated into his Toronto high school, where he is performing at his optimal level. He hopes to continue his education community college. Kristopher is 17 and profoundly deaf. He is on target to graduate from high school and wants to apprentice in graphic arts program. Brian is 16-year-old with diagnosed communications exceptionality. He is earning high marks in math and technical subjects, but just passing English. He wants to apprentice as an electrician. At 17, Jamie is an African Canadian enrolled in the applied (a.k.a. nonacademic) program, although she aspires, after graduation, to pursue career in law. Their suit alleges that the ministry's requirement that, as condition of graduation, all students must pass both the reading and writing components of the Ontario Secondary School Literacy Test (OSSLT), or pass special literacy course if they have failed the test twice, infringes on students' rights under Section 15(1) of the Canadian Charter of Rights and Freedoms.1 Each litigant has failed the OSSLT least once or has been excused from taking it because of disability. None of them is expected to pass the test or the course in subsequent attempts, although each will earn the 30 credits that, pre-OSSLT, would have entitled them to high school graduation certificate. Without that, none of these students can go on to postsecondary education of any sort, or apprentice any trade, or obtain student loan. Along with thousands of other marginalized failures, these demoralized students will be shoved into the unskilled (and often unemployed) work force. Little wonder that these students and their parents are determined to fight the OSSLT regime with all they've got. Since the Liberals now in power routinely denounced the OSSLT when they were in opposition, many critics of extreme-stakes testing might have assumed that the OSSLT would die along with the Tory government. Regrettably, testing has become the preferred way for governments to show that they are proactive on the education front. …

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